The opinion of the court was delivered by: Harold A. Baker United States District Judge
The pro se petitioner has filed a motion to proceed in forma pauperis and a "Petition to Preserve Documentary Evidence Before the Commencement of a Civil Action." The petitioner has not filed a complaint. Nonetheless, the case is set for a merit review hearing pursuant to 28 U.S.C. §1915A. The court will cancel this hearing. The plaintiff has not filed a civil rights complaint.
The petitioner says he expects to file a civil rights action pursuant to Bivens v.Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), and the Federal Tort Claims Act, 28 U.S.C. §1346. The petitioner says he is unable to bring his action at the present time because he is in the process of exhausting his administrative remedies.
The petitioner says on October 4, 2005, the petitioner was assaulted by three other inmates and was seriously injured. The petitioner says Officer Hinman did nothing to stop the attack which lasted approximately 30 minutes. The petitioner says the assault was captured on videotape. The petitioner says the staff at the Pekin Federal Correctional Facility have told the plaintiff they are only required to keep the videotape for a six month period. Therefore, the petitioner is concerned that the tape will be destroyed before he is able to exhaust his administrative remedies.
The petitioner has attached documents to his petition showing that he is attempting to exhaust his administrative remedies. The petitioner has also attached a January 20, 2006 letter from Warden R.V. Veach that was sent to the inmate in response to petitioner's request for the video tape of the incident. The warden states that the inmate is "not authorized to view or possess security surveillance footage, however the video is on file and will be maintained for our purposes." (Petition, Ex. C)
The petitioner says he is unaware of any particular civil rule which authorizes the preservation of evidence. However, since Rule 27(a) of the Federal Rules of Civil Procedure permits the taking of depositions to preserve evidence, the petitioner has made his request pursuant to this rule.
Federal Rule of Civil Procedure 27 provides a limited exception for discovery before an action is commenced in order to prevent a failure or delay of justice. In order to qualify for the this exception, a petitioner must show that: 1) he expects to be a party to a cognizable action in a United States Court; 2) he is unable to presently bring the cause of action; and 3) a substantial danger exists that testimony sought to be preserved would otherwise become unavailable or irrevocably lost before the complaint could be heard. Although the provisions of Rule 27 are most often used in connection with depositions, it has also been used for pre-action production of documents and inspection of land. See Martin v Reynolds, 297 F.2d 49, 56 (9th Cir. 1961).
The court will grant the plaintiff's motion to proceed in forma pauperis on his petition. [d/e 1] and set this case for hearing on the motion to perpetuate testimony. Although the plaintiff has named Officer Hinman as the opposing party, his petition demonstrates that Warden Veach is the more appropriate person to notify of the hearing. The hearing will be scheduled for May 23, 2006 at 9:45 by telephone conference call.
In the meantime, the warden is ordered not to erase or destroy the videotape of the October 4, 2005 incident prior to the hearing.
IT IS THEREFORE ORDERED THAT:
1) The merit review hearing scheduled for April 20, 2006 is canceled and the writ is recalled. This case was improperly docketed as an action pursuant to 42 U.S.C. §1983. The plaintiff has filed a Petition to Perpetuate Testimony pursuant to Rule 27 of the Federal Rules of Civil Procedures.
2) The plaintiff's motion to proceed in forma pauperis on his petition is granted. [d/e 1]
3) The plaintiff's petition is set for hearing on May 23, 2006 at 9:45 a.m. by telephone conference call. The clerk will initiate the call. The clerk should issue a writ for the ...